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THE ADMIRALTY & COMMERCIAL COURTS GUIDE 2006

 

B  Commencement, Transfer and Removal
B1   Commercial cases
B1.1   Rule 58.1(2) describes a "commercial claim" as follows: "any claim arising out of the transaction of trade and commerce and includes any claim relating to --
 
(a)   a business document or contract;
 
(b)   the export or import of goods;
 
(c)   the carriage of goods by land, sea, air or pipeline;
 
(d)   the exploitation of oil and gas reserves or other natural resources;
 
(e)   insurance and re-insurance;
 
(f)   banking and financial services;
 
(g)   the operation of markets and exchanges;
 
(h)   the purchase and sale of commodities;
 
(z)   the construction of ships;
 
(j)   business agency; and
 
(k)   arbitration."
B2   Starting a case in the Commercial Court
B2.1   Except for arbitration applications which are governed by the provisions of CPR Part 62 and section O of the Guide , the case will be begun by a claim form under Part 7 or Part 8.
B2.2   Save where otherwise specified, references in this Guide to a claim form are to a Part 7 claim form.
B2.3   The Commercial Court may give a fixed date for trial (see section D16), but it does not give a fixed date for a hearing when it issues a claim. Rules 7.9 and 7.10 and their associated practice directions do not apply to the Commercial Court.
B3   Part 7 claims
   The form
B3.1   A claimant starting proceedings in the Commercial Court must use practice form N1(CC) for Part 7 claims: PD 58 Paragraph 2.4. A copy of this practice form is included at the end of the Guide.
   Marking
B3.2   In accordance with PD 58 Paragraph 2.3 the claim form should be marked in the top right hand corner with the words "Queen's Bench Division, Commercial Court", and on the issue of the claim form out of the Registry the case will be entered in the Commercial List. Marking the claim form in this way complies sufficiently with PD 7 Paragraph 3.6(3).
   Statement of value
B3.3   Rule 16.3, which provides for a statement of value to be included in the claim form, does not apply in the Commercial Court: rule 58.5(2).
   Particulars of claim and the claim form
B3.4   Although particulars of claim may be served with the claim form, this is not a requirement in the Commercial Court. However, if the particulars of claim are not contained in or served with the claim form, the claim form must contain a statement that if an acknowledgment of service is filed indicating an intention to defend the claim, particulars of claim will follow: rule 58.5(1)(a).
B3.5   If particulars of claim do not accompany the claim form they must be served within 28 days after the defendant has filed an acknowledgment of service indicating an intention to defend the claim: rule 58.5(1)(c).
B3.6   The three forms specified in rule 7.8(1) must be served with the claim form. One of these is a form for acknowledging service: rule 58.5(1)(b).
   Statement of truth
B3.7  
(a)   A claim form must be verified by a statement of truth: rule 22.1. Unless the court otherwise orders, any amendment to a claim form must also be verified: rule 22.1(2).
(b)   The required form of statement of truth is set out at PD 7 Paragraph 7.2.
(c)   A claim form will remain effective even where not verified by a statement of truth, unless it is struck out: PD 22 Paragraph 4.1.
(d)   In certain cases the statement of truth may be signed by a person other than the party on whose behalf it is served or its legal representative: section C1.8-1.9.
   Trial without service of particulars of claim or a defence
B3.8   The attention of the parties and their legal representatives is drawn to rule 58.11 which allows the court to order (before or after the issue of a claim form) that the case shall proceed without the filing or service of particulars of claim or defence or of any other statement of case. This facility is to be used with caution. It is unlikely to be appropriate unless all the issues have already been clearly defined in previous exchanges between the parties either in the course of a pre-claim form application or in previous correspondence and then only when the issues are of law or construction.
   Interest
B3.9   The claim form (and not only the particulars of claim) must comply with the requirements of rules 16.4(1)(b) and 16.4(2) concerning interest:
   rule 58.5(3).
B3.10   References to particulars of claim in rule 12.6(1)(a) (referring to claims for interest where there is a default judgment) and rule 14.14(1)(a) (referring to claims for interest where there is a judgment on admissions) may be treated as references to the claim form: rules 58. 8(2) and 58.9(3).
   Issue of a claim form when the Registry is closed
B3.11   A request for the issue of a Part 7 claim form may be made by fax at certain times when the Registry is closed to the public: PD 58 Paragraph 2.2. The procedure is set out in Appendix 3. Any further details may be obtained from the Registry. The fax number is 020 7947 6667.
B4   Part 8 claims Form
B4.1   A claimant who wishes to commence a claim under CPR Part 8 must use practice form N208(CC): PD 58 Paragraph 2.4. A copy of this practice form is included at the end of this Guide.
B4.2   Attention is drawn to the requirement in rule 8.2(a) that where a claimant uses the Part 8 procedure his claim form must state that Part 8 applies. Similarly, PD 7 Paragraph 3.3 requires that the claim form state (if it be the case) that the claimant wishes his claim to proceed under Part 8 or that the claim is required to proceed under Part 8.
   Marking and statement of truth
B4.3   Sections B3.2 (marking) and B3.7 (statement of truth) also apply to a claim form issued under Part 8.
   Issue of a claim form when the Registry is closed
B4.4   A request for the issue of a Part 8 claim form may be made by fax at certain times when the Registry is closed to the public: PD 58 Paragraph 2.2. The procedure is set out in Appendix 3.
   Time for filing evidence in opposition to a Part 8 claim
B4.5   A defendant to a Part 8 claim who wishes to rely on written evidence must file and serve it within 28 days after filing an acknowledgment of service: rule 58.12.
B5   Part 20 claims
   Form
B5.1   Adapted versions of the Part 20 claim form and acknowledgment of service (Practice Forms no. N211 and N213) and of the related Notes to Part 20 claimant and Part 20 defendant have been approved for use in the Commercial Court. Copies of the practice forms are included at the end of the Guide.
B6   Service of the claim form
   Service by the parties
B6.1   Claim forms issued in the Commercial List are to be served by the parties, not by the Registry: PD 58 Paragraph 9.
   Methods of service
B6.2   Methods of service are set out in CPR Part 6, which is supplemented by a Practice Direction.
B6.3   PD 6 Paragraphs 2.1 and 3.1 concern service by document exchange and by fax. Service of the claim form on the legal representative of the defendant by document exchange or fax will not be effective unless that legal representative has authority to accept service. It is desirable to obtain confirmation from the legal representative in writing that he has instructions to accept service of a claim form on behalf of the defendant.
   Applications for extension of time
B6.4   Applications for an extension of time in which to serve a claim form are governed by rule 7.6. Rule 7.6(3)(a), which refers to service of the claim form by the court, does not apply in the Commercial Court.
B6.5   The evidence required on an application for an extension of time is set out in PD 7 Paragraph 8.2.
   Certificate of service
B6.6   When the claimant has served the claim form he must file a certificate of service: rule 6.14(2). Satisfaction of this requirement is relevant, in particular, to the claimant's ability to obtain judgment in default (see Part 12) and to the right of a non-party to search for, inspect and take a copy of the claim form under rule 5.4(2)(a).
B7   Service of the claim form out of the jurisdiction
B7.1   Applications for permission to serve a claim form out of the jurisdiction are governed by rules 6.19 to 6.31. A guide to the appropriate practice is set out in Appendix 15.
B7.2   Service of process in some foreign countries may take a long time to complete; it is therefore important that solicitors take prompt steps to effect service.
B8   Acknowledgment of service
   Part 7 claims
B8.1  
(a)   A defendant must file an acknowledgment of service in every case: rule 58.6(1). An adapted version of practice form N9 (which includes the acknowledgment of service) has been approved for use in the Commercial Court. A copy of this practice form (Form N9(CC)) is included at the end of the Guide, together with adapted versions of the notes for claimants and defendants on completing and replying to a Part 7 claim form.
(b)   The period for filing an acknowledgment of service is calculated from the service of the claim form, whether or not particulars of claim are contained in or accompany the claim form or are to follow service of the claim form. Rule 9.1(2), which provides that in certain circumstances the defendant need not respond to the claim until particulars of claim have been served on him, does not apply: rule 58.6(1).
   Part 8 claims
B8.2  
(a)   A defendant must file an acknowledgment of service in every case: rule 58.6(1). An adapted version of practice form N210 (acknowledgment of service of a Part 8 claim form) has been approved for use in the Commercial Court. A copy of this practice form (Form N210(CC)) is included at the end of the Guide, together with adapted versions of the notes for claimants and defendants on completing and replying to a Part 8 claim form.
(b)   The time for filing an acknowledgment of service is calculated from the service of the claim form.
   Acknowledgment of service in a claim against a firm
B8.3  
(a)   PD 10 Paragraph 4.4 allows an acknowledgment of service to be signed on behalf of a partnership by any of the partners or a person having the control or management of the partnership business, whether he be a partner or not.
(b)   However, attention is drawn to Schedule 1 to the CPR which includes, with modifications, provisions previously contained in RSC Order 81 concerning acknowledgment of service by a person served as a partner who denies his liability as such. (see also the note at the end of CPR Part 10).
   Time for filing acknowledgment of service
B8.4  
(a)   Except in the circumstances described in section B8.4(b) and B8.4(c), or is otherwise ordered by the court, the period for filing an acknowledgment of service is 14 days after service of the claim form.
(b)   If the claim form has been served out of the jurisdiction without the permission of the court under rule 6.19, the time for filing an acknowledgment of service is governed by rule 6.22, save that in all cases time runs from the service of the claim form: rule
   58.6(3).
(c)   If the claim form has been served out of the jurisdiction with the permission of the court under rule 6.20 the time for filing an acknowledgment of service is governed by rule 6.21(4)(a), the second practice direction supplementing rule 6 and the table to which it refers, save that in all cases time runs from the service of the claim form: rule 58.6(3).
B9   Disputing the court's jurisdiction
   Part 7 claims
B9.1  
(a)   If the defendant intends to dispute the court's jurisdiction or contend that the court should not exercise its jurisdiction he must
  (i)   file an acknowledgment of service -- rule 11(2);and
  (ii)   issue an application notice seeking the appropriate relief.
(b)   An application to dispute the court's jurisdiction must be made within 28 days of filing an acknowledgment of service: rule 58.7(2).
(c)   If the defendant wishes to rely on written evidence in support of that application, he must file and serve that evidence when he issues the application.
(d)   The parties to that application should consider at the time of the application and as soon as possible thereafter whether the application is a `heavy application' within Section F6.1 likely to last more than half a day but for which the automatic timetable provisions in PD 58 para 13.2 and F6.3 ­ F6.5 will not for any reason be appropriate. If any party considers that special timetabling is required otherwise than in accordance with those automatic provisions it should at once so inform all other parties and the Listing Office. Unless a timetable covering those matters covered by Section F6.3 to F6.5 can be agreed forthwith, the applicant must without delay inform the Listing Office that a directions hearing will be required. For the purposes of such a hearing all parties must by 1pm on the day before that hearing lodge with the Listing Office a brief summary of the issues of fact and law likely to arise on the application, a list of witnesses of fact whose witness statements or affidavits are likely to be adduced by that party, a list of expert witnesses on whose report that party intends to reply, an estimate of how long the hearing will take and a proposed pre-hearing timetable.
(e)   If the defendant makes an application under rule 11(1), the claimant is not bound to serve particulars of claim until that application has been disposed of: rule 58.7(3).
   Part 8 claims
B9.2  
(a)   The provisions of section B9.1(a)-(c) also apply in the case of Part 8 claims.
(b)   If the defendant makes an application under rule 11(1), he is not bound to serve any written evidence on which he wishes to rely in opposition to the substantive claim until that application has been disposed of: rule 11.9.
   Effect of an application challenging the jurisdiction
B9.3   An acknowledgment of service of a Part 7 or Part 8 claim form which is followed by an application challenging the jurisdiction under Part 11 does not constitute a submission by the defendant to the jurisdiction: rules 11(3) and 11(7).
B9.4   If an application under Part 11 is unsuccessful, and the court then considers giving directions for filing and serving statements of case (in the case of a Part 7 claim) or evidence (in the case of a Part 8 claim), a defendant does not submit to the jurisdiction merely by asking for time to serve and file his statement of case or evidence, as the case may be.
B10   Default judgment
B10.0   Default judgment is governed by Part 12 and PD 12. However, because in the Commercial Court the period for filing the acknowledgment of service is calculated from service of the claim form, the reference to "particulars of claim" in PD 12 Paragraph 4.1(1) should be read as referring to the claim form: PD 58 Paragraph 6(1).
B11   Admissions
B11.0  
(a)   Admissions are governed by CPR Part 14, and PD 14, except that the references to "particulars of claim" in PD 14 Paragraphs 2.1, 3.1 and 3.2 should be read as referring to the claim form: PD 58 Paragraph 6(2).
(b)   Adapted versions of the practice forms of admission (practice forms no. N9 A and no. N9 C) have been approved for use in the Commercial Court. Copies of these practice forms (Forms N9 A(CC) and N9 C(CC)) are included at the end of the Guide.
B12   Transfer of cases into and out of the Commercial List
B12.1   The procedure for transfer and removal is set out in PD 58 Paragraph 4. All such applications must be made to the Commercial Court: rule 30.5(3).
B12.2   Although an order to transfer a case to the Commercial List may be made at any stage, any application for such an order should normally be made at an early stage in the proceedings.
B12.3   Transfer to the Commercial List may be ordered for limited purposes only, but a transferred case will normally remain in the Commercial List until its conclusion.
B12.4   An order transferring a case out of the Commercial List may be made at any stage, but will not usually be made after a pre-trial timetable has been fixed at the case management conference (see section D8).
B12.5   Some commercial cases may more suitably, or as suitably, be dealt with in one of the Mercantile Courts or the London Mercantile Court. Parties should consider whether it would be more appropriate to begin proceedings in one of those courts and the Commercial Judge may on his own initiative order the case to be transferred there. Guidance on practical steps for transferring cases to the London Mercantile Court and to the Mercantile Courts is contained in a Guidance Note at Appendix 18.